A personal representative has a duty to the beneficiaries of the estate to, among other things:
(a) Fairly and even-handedly administer the estate;
(b) Realize estate assets in a timely manner;
(c) Respond to queries from beneficiaries; and
(d) Account to the beneficiaries.
In all instances, a personal representative must remain impartial and act as amicus to the Court, and must not take a position that benefits one beneficiary to the detriment of another. A personal representative’s decisions must balance all beneficiaries’ interests, and must not prefer the rights of one over another. A personal representative must not have a personal interest which conflicts, or may conflict, with the interests of the estate and its beneficiaries and must be indifferent to the outcome of any legal proceedings involving the estate.
In the event of competing interests between beneficiaries, a personal representative is required to seek the Court’s direction. This is imperative particularly in situations where the personal representative stands to personally benefit from a position taken in their capacity as personal representative.
If a personal representative fails to act in the best interests of the beneficiaries to such an extent that the welfare of the beneficiaries is at risk, they can be removed by the Court.
The guiding principles for removal are summarized in Warren Estate (Re), 2015 ABQB 420:
“The historical factors which a court was required to consider when appointing an administrator should be considered on an application for removal, including conflict of interest, misconduct, lack of bona fides, an inability or unwillingness to carry out the terms of the trust, incapacity, personally benefiting from the trust, acting to the detriment of beneficiaries, or any other ground that shows that the trustee is not fit to control another’s property….
...Troubling conduct includes failure to take steps that concern the assets comprising the estate, such as providing an accounting…. Such conduct may lead the court to conclude that the executor will be unable to fairly and even-handedly administer the estate, as it demonstrates a want of proper capacity to execute the duties, or a want of reasonable fidelity justifying removal….”
If you are a beneficiary or an interested person of an estate and believe the conduct of the personal representative(s) warrants their removal, and would like further information on your rights, please contact us.
If you are a personal representative seeking to defend an application for your removal, and would like further information on your options, please contact us.
Initial consultations are free of charge.
For further information see Surrogate Rules of Court; Estate Administration Act, SA 2014; Warren Estate (Re), 2015 ABQB 420, Laboucane Estate, 2011 ABQB 253; Knight Estate (Re), 2014 ABQB.